The defendant mortgagor brought a motion to set aside a default judgment for possession and $326,267.88 obtained by the plaintiff mortgagee.
The defendant argued she was mentally incapacitated when she entered the mortgage and when she defaulted, and raised defences of non est factum and lack of independent legal advice.
The court applied the five-factor test for setting aside default judgments and found the defendant lacked a plausible excuse for default, having deliberately discarded the statement of claim.
The court also found no arguable defence on the merits, as the medical evidence did not support her claims of incapacity at the relevant times, and she had signed documents confirming legal advice.
The motion to set aside was dismissed, but the default judgment was varied to deduct $1,763.60 in un-incurred fees.
